First Amendment
Issues Raised by Permits and Fees for Marches and Rallies

The Issue: Can
cities and states demand that marchers obtain permits?
Can the marchers be charged fees? If so, on what basis can
the fees be set?

Introduction

Providing
security for marches and rallies costs cities money. So it is
only natural to expect cities to seek to recover some of those costs
from the sponsors of marches and rallies, especially when the marches
and rallies concern causes for which most people in the city have
little sympathy. There is an obvious possibility that cities
might set fees in part to discourage expressive activities that are
protected by the First Amendment. Can cities establish fees for
marches and rallies? If so, must the fees be uniform or can they
be tailored to reflect the actual costs of providing security, which
will often be higher in the case of controversial speech? When do
fees become too high for First Amendment purposes? These are
among the issues addressed by the set of cases on this page.

Cox v New Hampshire
considered the constitutionality of a Manchester, N. H. ordinance that
set a fee from a nominal amount up to $300 for marches and
parades. The ordinance was challenged by a band of
Jehovah's Witnesses who, without seeking the required permit, conducted
a march in which they held signs saying "Religion is a snare and a
racket" and handed out leaflets to passers-by. The Supreme Court
upheld both the permit requirement and the fee. The Court saw the
permit requirement as allowing the city an opportunity to provide
proper policy and held that the variable fee was permitted by the First
Amendment. Chief Justice Hughes, writing for the Court, said "We
perceive no constitutional ground for denying to local governments that
flexibility of adjustment of fees which, in the light of varying
conditions, would tend to conserve, rather than impair, the liberty
sought."

In Collin v Smith, the
Seventh Circuit considered an ordinance of the predominantly Jewish
suburb of Chicago, Skokie, that had clearly been enacted in an effort
to thwart a proposed march through the city by a neo-Nazi group.
The Nationalist Movement proposed a half hour march by about 30 members
wearing uniforms that included swastikas and banners urging "Free
Speech for White America." In response the the request for a
parade permit, Skokie adopted a new ordinance prohibiting permits for
demonstrations designed to incite hatred or violence against groups of
persons because of race or religion and which also required groups
seeking march or parade permits (unless the parade is sponsored by the
city, as had been the case in Skokie with Memorial Day and Fourth of
July parades) to obtain $300,000 liability insurance and $50,000 in
property insurance. The Seventh Circuit panel, over a dissent,
found the Skokie ordinance, both in terms of its content requirement
and the insurance requirement, to violate the First Amendment.
The court saw the insurance requirement as part of an effort to
suppress the speech of the neo-Nazis.

Finally, in Forsyth County v
Nationalist Movement, the Supreme Court considered the ordinance
of a Georgia county that required demonstrators and parade sponsors to
obtain a permit and "pay in advance for such permit a sum not more that
$1000." When the Nationalist Movement proposed to demonstrate in
opposition to a federal holiday commemorating the birthday of Martin
Luther King, Jr., the county imposed a $100 fee. The Nationalist
Movement challenged the fee, arguing that imposing it in this case
violated its First Amendment rights. By a 5 to 4 vote, the Court
agreed. Writing for the majority, Justice Blackmun found the
ordinance fatally flawed because it gave too much discretion to county
officials to use the fee requirement to discourage unpopular
speech. The dissenters argued that the decision in the case
should have been controlled by Cox v
New Hampshire.

Walkerv Birmingham raised a
different issue. Walker
raised the issue of whether civil rights demonstrators in Birmingham in
1963 had a
constitutional
right to march in defiance of a state court's injunction. By a
bare
majority, the Court upheld contempt convictions against the civil
rights
demonstrators, concluding that they had an obligation to appeal the
court's
order before marching--even if the permit ordinance they were ordered
to
comply with violated the First Amendment (the Court later, in Shuttlesworth
v Birmingham (1969), struck down the Birmingham ordinance) and they
had no realistic chance of obtaining a permit. The Court said
only
when an ordinance is "transparently invalid" (not merely invalid) can
one
raise the invalidity of the ordinance as a defense in a contempt
case.
The four dissenters complained that the Court's decision "magically
transforms
the command of an unconstitutional statute into an unpregnable barrier."

Frank Collin, Nationalist Movement leader who sought
permit to march in Skokie, IllinoisQuestions

1. Where does the law stand today
for permit fees for parades, marches, and other demonstrations?
Is a flat fee that is reasonably calculated to recover the actual costs
of provided security for the event permissible, even though this will
mean higher costs for more controversial speech?
2. Alternatively, are fees only permissible if they are the same
for all permit seekers?
3. Could a fee vary based on the expected number of marchers or
demonstrators?
4. How much discretion is too much discretion when it comes to
permits?

Challenging
Parade Permit Requirements: Procedural IssuesMartin Luther King under arrest for
marching without a permit.